Ram
Pal & Anr. Vs. State of U.P. [2007] Insc
1303 (14 December 2007)

S.B.
Sinha & Harjit Singh Bedi Harjit Singh Bedi, J.

1.
This appeal by special leave arises out of the following facts.

2. One
Lal Singh had three sons, Hari Singh, Jaswant Singh and Birbal Singh. Brij Pal
Singh PW 1, Ved Pal and Gajender Singh are the sons of Birbal Singh whereas Suraj
Bhan, Netar Pal and Satbir Singh are the sons of Jaswant Singh and Ram Pal and
Ram Saran, the accused are the sons of Hari Singh. Hari Singh predeceased his
father Lal Singh whereafter the joint land holding was partitioned by Lal Singh
between his sons Jaswant Singh and Birbal Singh and the sons of Hari Singh
deceased in equal shares retaining 18 bighas for himself. About 2-3 years prior
to the incident Ram Pal Singh staked a claim that the tube well on the land was
his exclusive property on the plea that the electricity connection was in his
fathers name. Several civil and criminal litigations followed on account
of this dispute and certain other matters with the result that the relations
between the accused and Birbal Singh degenerated to an all time low and about
two days prior to the occurrence, an altercation had taken place between Birbal
Singh and his son Brij Pal Singh on the one side and the accused on the other,
relating to the use of the tubewell water. At about 8.30 A.M. on 20th June
1991, Birbal Singh accompanied by his brother Jaswant Singh and his son Brij
Pal Singh left the village to go to Muzaffarnagar for purchase of house-hold
articles when they were accosted by the two accused, Ram Pal carrying his
licensed DBBL .12 bore shotgun, and Ram Saran armed with a country made pistol
and the accused fired a shot each in quick succession hitting Birbal Singh
killing him instantaneously Jaswant Singh and Brij Pal Singh saved themselves
by lying prone on the ground. The incident was also witnessed by several other
persons who were passing by amongst them being Harvir Singh PW 2, Tejvir Singh
PW 3, Amar Singh and Matroo Singh and on their challenge the assailants ran
away. Brij Pal Singh PW 1 thereafter rushed to the village, wrote out a report
and then went to police station Tetawi six kilometers away from the place of
incident in a tractor and handed over the written complaint at 10.30 a.m. leading to the registration of the FIR. SHO Brij
Mohan Mishra accompanied by SI Rajinder Singh then reached the place of
occurrence whereafter the SI recorded the inquest proceedings relating to the
murder. He also picked up a spent cartridge case and wads of a shotgun
cartridge and dispatched the dead body for the post mortem examination. He also
conducted a search of the house of Ram Pal and Ram Saran on 21st June, 1981 and recovered a DBBL gun and 10
live cartridges licensed to the former therefrom. The weapon and the cartridge
case were sent to the Forensic Laboratory and its report revealed that the
cartridge had been fired from the right barrel of the gun in question. On the
completion of investigation, the accused were charged for offences punishable
under Sections 302/149 I.P.C and they pleaded not guilty and claimed trial.

3. The
Trial Court held that though the relations between the parties were strained on
account of several factors yet these differences did not constitute a
sufficient reason for the murder of Birbal, the uncle of the accused, and on
the other hand Brij Pal Singh PW 1 had the motive to implicate the accused in a
false case and as such it was appropriate that the eye witness account be
examined minutely. The Trial Court then examined the evidence of the eye
witnesses PW1 Brij Pal Singh, PW 2 Harvir Singh and PW 3 Tejvir Singh and
taking up of the case of PW 1 Brij Pal Singh first, observed that he was the
most important witness being the son of the deceased but his testimony was not
trustworthy as he and his brother had picked up a woman in the year 1979 for
which a criminal case was pending and that another case relating to the murder
of one Nirmal was also pending against him, his brother and their father. The
Court also observed that Brij Pal Singh had attempted to cheat his brother Ved
Pal and Gajender Singh and his relatives of the 18 bighas of land left by his
grand father Lal Singh and was therefore a man of such abysmally low character
and mentality that he could not be trusted. The Court then examined the
statement of Harvir Singh and found that he was chance and stock witness and as
he had earlier been an eye witness in the case of the murder of one Pradhan.

The
Trial Court (on this aspect) observed thus:

It
is a very rare chance (sic) a man to be witness of two murders in his life
time. In that case Ld. District & Sessions Judge did not relied (sic) upon
the testimony of Harbir and the accused persons were discharged. The photocopy
of the judgment dated 16.1.1973 passed by ld. District & Sessions Judge is
available on record. As it is stated above that Harbir is very close to the
complainant, deceased and other witnesses. Harbir stood surety against the
complainant in the case of girl kidnapping. He stood surety against Vedpal,
brother of the complainant and also stood surety against Jaswant, uncle of the
complainant in a case under Section 107/116. In brief whenever either
complainant or his family members were in need of surety, Harbir provided his
services. Such a person who has already been a witness in a murder case and he
was not relied upon and who is a permanent surety for the party of the
complainant could not be relied upon easily.

4. The
Trial Court then examined the statement of Tejvir Singh and observed that he
too had been closely associated with Brij Pal as he had been in college with
him in Muzaffarnagar and that when Tejvirs uncle Karan Singh had been
murdered; Jaswant Singh had been one of the witnesses and that there was no
reason whatsoever as to why Tejvir Singh should have been present in that area
at the relevant time as he had no field or land in that direction. The court
then examined the plausibility of the prosecution story and held that Birbal
Singh who was statedly on his way to Muzafarnagar for purposes of shopping for
household goods was a story which could not be believed as he had not been
wearing shoes or a cap on his head or a vest under his shirt or an underwear
under his dhoti and though there was a tonga service available from the village
to Muzaffarnagar he along with the others had still chosen to walk to that
place. The Trial Court accordingly concluded that it appeared that the deceased
had been shot while easing himself and the body had thereafter been taken out
by the murderer(s) and put on the boundary of the field. The Court also
examined the Forensic evidence and opined that there was no explanation for the
presence of an empty cartridge at the spot as only one shot had been fired from
each of the two weapons and there was no need for a re-loading of the weapons
in that situation. The Trial Court also observed that the time of recovery of
weapon being 26 hours after the incident, the Inspectors note about the
smell of the gun powder from the right barrel of the gun could not be believed
as the smell could not have been present after such a long time. Having held as
above the Trial Court acquitted the accused.

5. The
State thereafter preferred an appeal before the Allahabad High Court. The Division Bench Court reversed the findings and convicted
the accused under Sections 302/34 I.P.C and sentenced each of them to
imprisonment for life. It is in these circumstances that the present appeal is
before us by way of special leave.

6. We
have heard learned counsel for the parties very carefully. We are conscious of
the oft repeated principle that the High Court should be slow to interfere on a
finding of acquittal recorded by the trial court and if the view taken by that
Court is possible on the evidence, the High Court should not set it aside on the
premise that it was of a different opinion though it is permissible for it to
re-evaluate the entire evidence. It is in this background that we must examine
the findings of the High Court in the light of the arguments which have been
addressed before us by the learned counsel for the parties.

7.
Concededly, the facts of the case show that the parties are very closely
related and on account of the dispute relating to the tubewell and the 18 bighas
of land which had been left by Lal Singh, the relations between them were
extremely strained. The High Court accordingly re-assessed the ocular evidence
and held as under:

However
the trial judge has doubted the testimony of all the three eye witnesses on one
ground or the other for no substantial reasons. He doubted the testimony of PW
1 Brij Pal Singh mainly on threefold grounds

(i) he
was involved in an abduction case of a lady and that case was still pending at
that time,

(ii) he
alongwith his father and brothers assaulted Nirmal and that case was also pending
against him at the time of the occurrence and

(iii)
he alongwith his cousin Satvir son of his Tau Jaswant Singh fabricated the
agreement of sale regarding 18 bighas land of his grand father Lal Singh
debarring his real brothers, cousins and sons of his deceased uncle Hari Singh
from that property observing that he was a man of such character and mentality
that he could do anything for his self interest. The trial judge also observed
that inspite of the fact that civil suit of perpetual injunction filed by Ram
Pal was pending against him in the civil court he used to irrigate his land
from the tubewell owned by Ram Pal and his brothers forcibly. We have given our
anxious consideration to all these grounds and we are of the view that neither
of these grounds aforesaid got any substance so as to render this witness Brij
Pal Singh an unreliable person. If a person was involved in an abduction case
it can not be said that in fact he was guilty of that offence. There may be so
many reasons for involving a person in a case falsely. Further, admittedly Brij
Pal Singh alongwith his father and brothers were being prosecuted for
assaulting Nirmal but admittedly there was a cross-case also against Nirmal and
others initiated at the instance of Birbal Singh, the deceased against Mahabir,
father of Nirmal and others. Regarding the alleged agreement of sale, without
being adjudicated upon by a court of law it can not be said that it was
fabricated one. Admittedly those proceedings ended in compromise and after the
compromise 18 bighas of land owned by Lal Singh was mutated in the names of all
his legal representatives. No doubt, Brij Pal Singh and Jaswant Singh mentioned
in the alleged compromise that they had not given Rs. 40,000.00 as part payment
to Lal Singh; but in the family there are so many matters and on what terms the
compromise was reached between the parties are not known. Hence any adverse
inference can not be drawn therefrom as PW 1 Brij Pal Singh stated that
whatever he was directed to write in the compromise he got the same mentioned
therein for getting the objections rejected. Regarding irrigation of their land
by Brij Pal Singh and his brother from the tubewell, it appears that the field
in which the tubewell was situate fell to the share of Ram Pal and his brothers
but that tubewell was joint family property as it was installed in the life
time of Hari Singh and Lal Singh before consolidation and partitition in the
family and therefore Brij Pal Singh and his father Birbal claimed their right
for irrigation of their land adjoining thereto from that tubewell. Hence for
the above, it can not be said that the character of Brij Pal Singh was such
that he could not be said to be a responsible person whose sworn testimony
could not be relied upon.

The
trial judge further mentioned that PW 2 Harvir Singh and PW 3 Tejvir Singh were
their own persons as whenever Brij Pal Singh or any member of his family or the
family of Jaswant Singh got involved in any case Harvir Singh and Tejvir Singh
stood surety for them. We have considered these facts carefully and cautiously
and we are of the view that there is nothing wrong because if a person gets
involved in some criminal proceedings and sureties have to be furnished for his
bail the persons acquainted with him only would stand surety for him. It is a
matter of common experience and knowledge that in villages generally there are
party factions due to one reason or the other and the persons acquainted with
each other share the problems of each other mutually. This is the way rural
life goes on.

The
trial judge also doubted the credibility of PW 2 Harvir Singh as admittedly he
was an eye witness in the murder case of the village pradhan who was murdered
in the year 1974 and again he appeared as an eye witness in the instant murder
case. It may be just by chance that a person resident of the same village
witnesses two murders. As a man of conscience and character he should appear as
a witness in the murder case if he witnessed the murder or was acquainted with
any fact relating thereto.

If a
murder case in which he had appeared as a witness ended in acquittal and he
appeared as an eye witness after 6-7 years in another murder case it would not
be justified to draw a presumption that he is not a reliable person and his
testimony should be disbelieved only for that reason.

The
trial judge disbelieved the testimony of PW 3 Tejvir Singh on the ground that
admittedly Satvir Singh son of Jaswant Singh and this witness Tejvir Singh
studied together in S.D.L College Muzaffar Nagar and they were class fellows in
B.A. and Brij Pal Singh also used to study in that very college. He also
observed that Karan Singh, uncle of Tejvir Singh (PW 3) had quarrel with one Bhim
and Pratap and in that case Jaswant Singh father of Satvir Singh stood as a
witness in favour of Karan Singh and therefore Tejvir Singh appeared as a
witness in that case against Ram Pal and Ram Saran prosecuted for the murder of
Birbal Singh, brother of Jaswant Singh. In our view we can not go by these
considerations in believing or disbelieving the testimony of a witness. By
these facts we conclude only this much that this witness should be treated as a
partisan witness whose testimony has to be scrutinized with care and caution.

The
trial judge also doubted the presence of PW 3 Tejvir Singh at the scene of
occurrence as he stated that at that time he was going to the field situate at
a short distance from the scene of occurrence for cutting fodder as he had
taken that field from Nain Singh on batai whereas DW 1 Nain Singh stated that
he had never given that field to Tejvir Singh on batai.

However
this witness Nain Singh was given a suggestion in his cross- examination that
daughter of his cousin brother and real sister of accused Ram Pal got married
in one and the same family at village Narsan, District Saharanpur which he
could not deny. He only expressed ignorance stating that he did not know if
daughter of his cousin brother and real sister of accused Ram Pal were married
in one and the same family at village Narsan, District Saharanpur. It may be
noted here that no question regarding this fact was put up by the defence
counsel to PW 3 Tejvir Singh in his cross-examination. Hence the testimony of
DW1 Nain Singh is no better than a got up witness as he might be denying having
given that field to Tejvir Singh on batai under the influence of accused Ram
Pal. Moreover, the presence of a witness at the scene of occurrence can well be
tested in his cross-examination. If he has withstood the test of
cross-examination firmly and his credibility has not been impaired in his
cross-examination his statement will have corroborative value otherwise
not.

8. The
findings aforesaid have been challenged by Mr. Mahabir Singh, the learned
senior counsel appearing for the accused/appellants.

9. He
has first argued that the eye witnesses account suffered from serious
infirmities. He has pointed out that all the witnesses were either related to
the deceased or were members of his group and as such their evidence had to be
accepted with care and caution. He has also urged that the character of the
three witnesses did little to enhance their credibility and that the High Court
had not really met the reasons given by the trial judge in refusing to accept Harvir
Singhs presence at the place of incident. He has in addition submitted
that the High Court had found corroboration from the forensic evidence in the
case but the facts which had come on the record, belied this evidence as well.
The learned State counsel has however supported the judgment of the High Court.

10. It
would be apparent that the fate of the appeal would primarily rest on the
statements of the eye witnesses. We first take up the case of Brij Pal Singh
PW-1. Concededly, he is the son of the deceased. It is clear from his testimony
that the relations between the parties were acrimonious and that there had been
several bouts of litigation between them. Brij Pal Singh has clearly stated as
to the manner in which the incident had happened. His statement finds full
support from PW Tejvir Singh. The trial judge had disbelieved Tejvir Singh on
the ground that he was a friend of Brij Pal Singh and had also been a witness
to another murder. We find that the matter has been dealt with by the High
Court in extenso and as per the portion quoted above, we find no reason
whatsoever to differ from the opinion expressed with regard to the presence of Brij
Pal Singh and Tejvir Singh.

11. We
however do feel that there is some doubt with regard to the presence of Harvir
Singh. Concededly, his statement under 161 of the Code of Criminal Procedure
had been recorded by the police about 22 days after the incident. The
justification for this delay given by PW 10 SHO Brij Mohan Mishra who stated
that Harvir Singh could not be traced earlier is perhaps not believable. Even
assuming therefore that there is some doubt as to the presence of Harvir Singh,
we find absolutely no reason to disbelieve the presence of the other two eye
witnesses, the more so as the FIR had been lodged within two hours of the
incident in the police station at a distance of six miles from the place of
incident.

12.
Mr. Mahavir Singh has also seriously challenged the Forensic evidence in this
case by arguing that though the spent cartridge case had been picked up from
the spot on 20th June, 1981 and the gun recovered the next day, both these
items had been sent to the laboratory only on 17th September, 1981 and as the
22 pellets recovered from the dead body had not been sent to the laboratory
there was no justification in holding that the weapon had in fact been used in
the murder.

In
support of his case Mr. Mahabir Singh has relied on Palia vs. State of Punjab, 1997 SCC Crl. 383, Baldev Singh
vs. State of Punjab (1990) 4 SCC 692, Santa Singh vs.
State of Punjab AIR 1956 SC 526. He has also urged
that as PW 10 Brij Mohan Mishra in his cross examination had testified that
there were about 7-8 small shots in a .12 bore cartridge, the recovery of 22
pellets from the dead body and the note regarding the smell of gun powder from
the barrel of the gun, falsified the prosecution story.

13. We
have considered these arguments very carefully.

We
first note that the facts that the cartridge case had been left by assailants
at the spot and that the shots had been fired from a shotgun and a pistol find
mention in the FIR.

Interestingly
also, there is a suggestion by the defence in the cross-examination as to
whether the spent cartridge had been found near the dead body or at some
distance therefrom. It is also clear from the statement of Ram Pal recorded under
Section 313 Cr.P.C. that the gun which was licensed to him had been recovered
from his house along with 11 cartridges.

We
have also perused the statement of PW 7 HC Rameshwar Prasad who stated that the
weapon and other articles have been sent to the Muzafarnagar city Malkhana on
2nd July, 1981 but had been returned to the police station as there was no
place for storage and had been returned to the Malkhana on 13th July, 1981
awaiting re-transmission to the laboratory.

We
also note from the statement of PW 9 Randhir Singh a retired constable who was
at the relevant time the moharrir of the Malkhana at Muzafarnagar in the police
station that the weapon and cartridge in a sealed condition had been deposited
with him on 2nd July, 1981 and had not been tampered with till their dispatch
to the Forensic Science Laboratory. We have also gone through the statement of Om
Prakash Tripathi PW 8, the expert in the Forensic Science Laboratory who had
examined the KF .12 bore fired cartridge case and DBBL gun No.7902082 and had
found that the said cartridge had been fired from the right barrel of the gun.

14.
Seizing on the fact that 22 pellets had been recovered from the dead body and
that PW 10 SHO Brij Mohan Mishra had deposed that a .12 bore cartridge
contained only seven to eight pellets, Mr. Mahabir Singh has submitted that the
prosecution story was on the face of it unacceptable. We find absolutely no
merit in this plea. It has come in the evidence of PW-8 Om Parkash Tripathi
that the cartridge used was of KF make (KF stands for Kirkee Factory). It is
therefore a cartridge manufactured by the Indian Ordnance Factory, at Kirkee,
which has, off and on, been manufacturing cartridges of shot sizes BB to 9 only
( this information has been reconfirmed from the Secretary, National Rifle
Association of India, New Delhi ). A 12 bore shotgun cartridge carries a shot
charge of twenty-five to thirty-five grams in weight and varying number of
pellets based on several factors such as the length of the cartridge as would
be clear from the following chart taken from Forensic Science in Criminal
Investigation and Trials by Dr. B.R.Sharma (4th Edition) at page 416:

15.
From the above table it can be concluded that KF manufactured cartridges can
contain between 70 (BB) to 580 (9) pellets per cartridge. The 7-8 pellets that
have been referred to by PW Brij Mohan Mishra would be pellets of buck shot
such as SG/LG which are not manufactured by the Kirkee Factory. The post-mortem
report also shows that there were multiple wounds of entry 1/8th of an inch
over the whole of the chest and upper half of abdomen in an area of 14 x
12, which confirms Brij Pals statement that the two shots had been
fired from a distance of about 40 or 50 feet. We are of the opinion that on
account of dispersal of the pellets at that range, not all would have struck
home. The recovery of 22 pellets therefore fits in with the prosecution story.
The argument based on the gun powder smell from the barrel is equally without
substance. In Modis Medical Jurisprudence and Toxicology, 23rd Edition
(Page 723) while dealing with the topic as to the time when the weapon was
fired it has been observed that it is never possible to ascertain
with any scientific accuracy the time when a weapon or cartridge was
fired. In this situation, the judgments cited, which are based on their
special facts, have no relevance to the facts of the present case.

16. We
are therefore of the opinion that no fault can be found with the judgment of
the High Court. We accordingly dismiss the appeal.